Kahan on Cognitive Illiberalism & Constitutional Theory

This essay uses insights from the study of risk perception to remedy a deficit in liberal constitutional theory — and vice versa. The deficit common to both is inattention to cognitive illiberalism — the threat that unconscious biases pose to enforcement of basic principles of liberal neutrality. Liberal constitutional theory can learn to anticipate and control cognitive illiberalism from the study of biases such as the cultural cognition of risk. In exchange, the study of risk perception can learn from constitutional theory that the detrimental impact of such biases is not limited to distorted weighing of costs and benefits; by infusing such determinations with contentious social meanings, cultural cognition forces citizens of diverse outlooks to experience all manner of risk regulation as struggles to impose a sectarian orthodoxy. The problem of cognitive illiberalism demands, both in constitutional law and in risk regulation, a distinctive form of “debiasing” that quiets the psychic pressure individuals experience to conform their perceptions of risk and related facts to their cultural values.